Police officer releases HIV status of suspect to ex-girlfriend

Experts say officer's actions were illegal

By Todd Heywood

A man who was arrested for a driving on a suspended license had his HIV-positive status disclosed to an ex-girlfriend, illegally, by a state trooper. The man's name, and that of his ex-girlfriend, have been changed because the man admits to having sexual relations with his girlfriend without disclosing his HIV-positive status, which is a felony in Michigan. The location has been changed as well.

On a Friday in late July 2010, Noah (not his real name) was arrested by a Michigan State Trooper for driving on a suspended license in Branch County. During his transport to the county jail, Noah said he was worried about having access to his anti-retroviral medications. Because it was late on a Friday, he worried he might not see a judge until Monday morning. Noah knew that even a couple of days without the medications could allow the virus time to develop immunity to the medications. He told the trooper who had arrested him that he needed to see a judge as soon as possible to get a bond and post it.

The trooper asked if the passenger in Noah's car, his ex-girlfriend Susan (not her real name) knew that Noah was HIV-positive. "Because we had broken up, I told him we didn't have that kind of relationship so she didn't need to know," Noah said.

Shortly after Noah was placed in a cell at the Branch County jail, the trooper who had arrested him came back to see him. "He told me I was going to see a judge and I would get a bond that day," Noah said. "Then he asked me for Susan's number. I thought he was going to call her and inform her about what was going on with the arraignment and bond." After he underwent a video arraignment, Noah called a family member, who posted the bond, and then he called Susan. She was driving away from Branch County, upset, because the trooper had informed her of Noah's HIV-positive status.

Noah convinced Susan to pick him up, and the two had a tense conversation on the two-hour drive back to the Detroit metro area. Susan told Noah that the trooper had informed her she should file a criminal charge against him.

Noah didn't hear anything about the criminal charges for months. Then he received a message from a metro Detroit county sheriff detective asking him to come in and tell his side of the story because Susan had filed a complaint. Noah ignored the call.

The detective called again and informed Noah that the prosecutor's office had gotten an order from a judge for the police to get a sample of his blood. "He told me I could come in voluntarily, or he could send in the fugitive apprehension team," Noah said. "He called them the 'door busters.' He said [they] would show up in the middle of the night and kick in the door and arrest me." The arrest would be executed on Noah's outstanding warrants for driving without a license.

A few weeks ago, Noah met the detective at a health department where his blood was drawn, per the search warrant. He agreed to do so if the detective agreed not to arrest him on the outstanding warrants. Now, Noah is waiting for the blood test to be returned, and the likely felony warrant that will surely follow. Neither the Michigan State Police nor Susan returned telephone calls seeking comment for this story.

Confidentiality Law violation

Experts in legal issues say Michigan's HIV Confidentiality Law MCL 333.5131 prohibits the disclosure of a person's HIV test results without the express authorized permission of the person who has tested positive. "There are a number of exceptions under the statute," Jay Kaplan, of the American Civil Liberties Union of Michigan's LGBT Project, said. In order to "prevent reasonably foreseeable risk of further transmission of HIV," a person can disclose someone's HIV-positive status to a health care provider to try to prevent further transmission of HIV, Kaplan explained. A health care provider may tell a contact of the individual with HIV. But if a health care provider chooses to do this, the name of that individual may not be given, unless that too is absolutely necessary to prevent transmission, Kaplan said.

"What the trooper allegedly did does not fall under these statutory exceptions," Kaplan said. "If he was concerned about the foreseeable risk of further transmission, he could have notified the local health department and then they could have contacted the girlfriend."

This is not the first time disclosure of an HIV-positive status by law enforcement was an issue in Michigan. In summer 2008 the Lansing City Attorney, Brigham Smith, came under fire when he released a police report that did not redact the HIV status of a man arrested in a sex sting operation. Advocates argued the disclosure violated state public health laws. The controversy led Lansing Mayor Virg Bernero to ask Republican Attorney General Mike Cox to weigh in on the case. The AG's office issued a determination that the public health code was not violated, thus exonerating the city attorney of wrongdoing. The ruling further indicated release of private medical information contained in police reports was not necessarily covered by the Freedom of Information Act law, which allows public bodies to prohibit the release of information that is a "clearly unwarranted invasion of privacy."

Catherine Hanssens, director of the Center for HIV Law and Policy in New York City, challenges the need for a blood sample months after the alleged failure to disclose. "Since the statute relies on a person's knowledge of HIV status at the time of the incident in question, a blood test conducted after the incident is irrelevant - it reveals nothing about the two relevant inquiries under Michigan law, i.e., whether the defendant was aware of his/her HIV status at the time of the contact in question, and whether the defendant notified the partner of the defendant's HIV status in advance of that contact," Hannsens said.

Hannsens and Kaplan agree that it is time to change Michigan's disclosure law. "The statute is overbroad in that the definition of sexual penetration includes activity that would not transmit HIV. It stigmatizes the HIV-positive person, labeling him/her a criminal for some behaviors that do not or would not transmit the virus."

Hannsens was even more blunt. " [T]he law in Michigan is absurd," says Hanssens. "[It] bears no rational relation to the actual causes and risks of HIV transmission and the epidemic in this country, and is a public health disgrace."